Selected legal papers 1 Analysis of the influence of legal culture on the construction of new legal system.
abstract:
Since China's reform and opening-up, the construction of legal system has attracted more and more attention from academic circles and society. There are many opinions and arguments about how to build China's legal system. Law has national characteristics and is a national consciousness. Exploring the significance of traditional legal culture in the construction of modern legal system can effectively promote the perfection and development of the legal system and form a distinctive and perfect legal system in China.
Key words:
Tradition; Legal culture; legal construction
Under the background of developing socialist market economy and under the guidance of the national policy of "ruling the country according to law", the importance of China's legal system construction is increasingly apparent. However, judging from the effectiveness of the thought of governing the country according to law, which originated from the West and was introduced into China, we have to admit the embarrassing situation of lagging behind the West. Friedrich & Boer, a famous jurist of German historical law school; Karl & Bull; Feng & Bull; Savigny believes that law, like language and customs, has "national characteristics", "national consciousness" and "inseparable organic connection from generation to generation", and it "grows with the growth of the nation". In the increasingly open socialist market economy environment, the new legal system construction in China is facing the impact of western legal culture and the influence of traditional legal culture in China. Faced with these problems, how should we choose and where should we go? In this regard, we have to admit that a set of legal systems and the classification of legal professional groups used in China today are almost all borrowed and transplanted from western developed countries. Therefore, they are basically not part of our traditional legal culture. To some extent, the legal system originated from western "foreign goods", which is even incompatible with China's traditional legal culture based on closed small-scale peasant economy, autocratic political rule and family-centered patriarchal clan system.
First of all, from the origin and application of law.
In China's traditional legal culture, law is only a tool for ruling and punishing. From the period of slave society, the theocratic thought of "retribution from heaven" and "punishment from heaven" appeared. Justice also mainly relies on "ghosts and gods" and "beasts", which are mainly used in religious, political and military activities. The basis of ancient Chinese law is "ceremony" and "punishment", and the pursuit is to maintain blood relationship and hierarchy. (1) and this makes people fear and reject the law, even disgust. Different from ancient Greek law and ancient Roman law in western legal culture, it is contractual human rights and democracy under the relationship of slave commodity economy.
Second, from the perspective of the development of law.
In China's traditional legal culture, Confucianism has gradually become the ideological system respected and dominated by the rulers, and the Chinese national spirit is essentially the embodiment of Confucianism. (2) The first is the tradition of "rule by man" advocated by Confucianism. Confucianism advocates the rule of the whole country by virtue, propriety, righteousness and idealism, which is reflected in the long-term continuation of China's traditional legal culture and autocratic rule. The legitimacy of law comes from the power given by the rulers, who are above the law and regard the law as a part of politics. This idea still has far-reaching influence. It is precisely because of this deep-rooted potential consciousness that law is regarded as a political tool in the hands of rulers, or as a means of punishment for revenge. From the historical practice of modern China, we can see that the judge of a criminal case rashly draws a conclusion on a case because of the public's public opinion and concern, which is as big as blind worship of power and specific figures and rejection of democracy, constitutionalism and decentralization. In western legal culture, as early as ancient Greece and Rome, an early democratic system was formed, and scholars who advocated democracy and the rule of law such as Aristotle and Plato appeared. In modern times, Locke, Montesquieu, Rousseau and other "originator" figures who had a great influence on the legal system construction in the modern world all came from the West.
Secondly, it is the "courtesy" and "virtue" respected by Confucian culture.
In western legal culture, bureaucracy is regulated by law, but in China, the law is not independent. Law is subordinate to morality and serves the administration. It has also become a system to stabilize social order and consolidate rule. As the saying goes, "Morality is the foundation of politics and religion" (3), law is only an auxiliary means and a dogmatic tool, which leads to the fact that law has not been effectively valued and believed by people for a long time. In China's traditional legal culture, the pursuit of propriety and righteousness is emphasized, and general ethics is advocated. As Mr. Fei Zhengqing said in "America and China", in a family-oriented society, "the value of people is not the inherent quality of everyone in the west, but needs to be obtained from the outside world. Whether a person's behavior is good or bad should be judged mainly by whether it contributes to social welfare and stability. Individuals themselves are not praised. Therefore, a political tradition in China is paternalistic control. " (4) This influence is enormous. On the one hand, this leads to "human feelings", "rank" and "face" becoming important factors in China's traditional legal culture.
This is extremely unfavorable to China's legal system construction today. In recent years, some remarks, such as "litigating is a relationship" and "having a father named Li Gang is not as good as a paper test", reflect from the side that our society is built on a complex network of relationships, and in this process, the value embodied by an independent individual's status and dignity is getting smaller and smaller. No matter whether it is voluntary or forced, only by succumbing to and participating in this large network similar to the hierarchical system can the interests be maximized, which will lead to some judicature. On the other hand, on this basis, once there is a certain degree of restraint from class and family, indifference to social rules is likely to lead to infringement, and the object of infringement may be both public interests and private interests, which is completely opposite to the goal of people's awe and conscious compliance with the law, a social public rule, in the construction of the legal system.
The advocacy of Confucian ideas of "harmony is precious" and "harmony between man and nature" has created the value orientation of "no litigation" among rulers and people, as well as legislation and judicature. Coupled with the litigation system of "heavy prison but light prosecution", people's awareness of rights has been weak since ancient times. People don't have the will and inclination to protect their rights by law, but when their rights are violated, they seek relief from power (which is usually illegal), or simply choose to swallow it. China's current "mainstream" view is similar to the cultural value orientation of "first using Chinese style and western style, and then gradually transitioning to western style and Chinese style". However, the requirements of the new legal system construction have obviously clashed with those of China's traditional legal culture. Under the guidance of "Chinese style" thought, we still can't get rid of the stereotype of the relationship between rule of man and human feelings, which will be fatal to the construction of legal system. So does this mean that we should totally deny and abandon China's traditional legal culture? This is obviously impossible. Then, in the wave of new legal system construction, how should we choose, so that China's traditional legal culture can realize its "gorgeous turn?" First, resolutely abandon the part of China's traditional legal culture that is not conducive to progress, and carry forward and absorb the advanced legal spirit of the West. We can boldly say that most of China's traditional legal culture is not conducive to the construction of the legal system. Of course, there are many reasons for this problem, but under the general trend of the world market economy, this is not only the requirement of China's development, but also an irreversible trend.
The second is system reform and improvement.
The imperfection of the system fanned the flames for abuse of power and corruption. The title of "Party" should not be allowed to become a "gold medal of impunity" and a symbol of privilege for some lawless elements. As the ruling party, its illegal acts should be handled transparently according to law. "Reduce the interference of power on legislation and judicature, attach importance to the status of the Constitution, and gradually establish an unconstitutional review mechanism (although the Constitution is a product full of political ideology, those who violate the Constitution must be punished and investigated by law, otherwise the Constitution will become a formalistic text), strengthen the supervision of power, and make the legislation, the judiciary and the administration independent and contain each other. Not only the legislative and judicial systems, but also the administrative ruling party should strengthen its own construction. This is the key to break the atmosphere of hierarchy and privileged power and ensure the rule of law. Third, cultural environment construction and education reform. Our country has no deep religious tradition in the west, which is a good foundation; Therefore, it is necessary to cultivate the public's belief in the law, regard the law as their "religious belief", reduce the influence of politics and ideology in cultural education, raise citizens' awareness of rights and advocate multiculturalism. At the same time, we should make proper use of the educational function of China's traditional legal morality and regard "no litigation" as the ultimate goal rather than the process. Starting with cultural education, strengthening legal education is a broad and necessary guarantee.
Bacon said, "For all things, especially difficult things, people should not expect to sow and harvest at the same time. In order to make them mature gradually, there must be a training process. " The influence of China's traditional legal culture can't disappear. China's legal system construction is bound to be a long and complicated process, but in this process, we need not only foresight and foresight, but also determination and perseverance. We must stand on the historical experience of the whole human development and the development trend of the present era. We should not only boldly absorb and learn from western advanced legal civilization, but also rationally choose China's traditional legal culture, so as to truly move from a power society to a civilized society ruled by law.
& lt& lt& lt The next page will bring more selected model articles of legal papers.